New health care law contains ‘surprise’ employment law changes

Buried in the mammoth health care reform law are some changes in employment law that will affect companies and their employees. A few of these changes were added at the last minute, with the result that not many people are prepared for them or are even aware of them.

Here’s a summary of the some of the major changes:

 • Mandatory break time for new mothers

Employers will be required to provide nursing mothers with “reasonable break time” to express breast milk under an amendment to a federal law that covers labor standards.

Companies will have to provide this time for up to one year after the birth of a child.

Seventeen states and the District of Columbia already have laws on the books with similar requirements. Where the state and federal laws differ, an employer must follow the one that gives the most benefits to nursing mothers.

A few details about the new law will have to be worked out when the Department of Labor issues regulations. For example, the new rule may conflict with various federal and state laws that deal with meal and rest breaks.

Another question that employers and workers may have is: What does “reasonable” mean? The term is not defined in the law, so the length of time employers must allow for a break is also up in the air.

There is also nothing in the new law that explains what kind of penalties will be imposed on employers who fail to follow the rules.

Employers with fewer than 50 employees may be excused from following the rule if they can show that it would pose an “undue hardship” for them.

Tax credit for providing health insurance

Companies that have 25 or fewer employees and pay averages wages of less than $50,000 are eligible for a tax credit if they provide health insurance to employees.

From 2011 to 2013, the credit can reach up to 35 percent of the employer’s health care contribution if the company pays at least 50 percent of the premiums.

Beginning on January 1, 2011, employers will be required to disclose the value of their contribution to each employee’s health insurance coverage on the employee’s W-2 form.

Help for hospital whistleblowers

Employees of hospitals who “blow the whistle” on an employer’s wrongdoing will get new protections under the law.

Hospital workers who claim they were retaliated against for refusing to go along with an employer in breaking the law, or for reporting an employer’s wrongdoing, will be entitled to a hearing before the Department of Labor where they can be awarded reinstatement, money damages and attorney fees. Workers who lose at the Department of Labor hearing can still go to court afterward and try to prove their case a second time.

The new law also makes it easier for workers to win their case, because they now have to prove only that their whistleblowing was a “contributing factor” in their getting fired or otherwise being discriminated against. Previously, they had to prove that their whistleblowing was the sole cause.

If employees prove that whistleblowing was a “contributing factor,” then they will win unless the employer can prove by “clear and convincing evidence” that it would have taken the same action anyway for unrelated reasons.

Employer-sponsored health plans

As for the changes in how employers operate group health plans for employees, there are many new rules:

* Annual or lifetime dollar limits on claims are prohibited.

* Children of covered employees must be covered up to age 26.

* Plans may not exclude preexisting conditions for children under age 19 beginning this year. (For adults, the prohibition begins in 2014.)

* Once an individual is covered, a plan may not take away coverage unless a worker commits fraud or intentionally misrepresents an important fact.

* Employers cannot charge some employees more than others for health insurance.

* Certain preventive services and immunizations must be covered without cost to employees.

* Taxes on withdrawals from health savings accounts for non-health related reasons will go up. Contributions to a flexible spending account are capped at $2,500. Expenses for over-the-counter medications (other than insulin) are no longer eligible for tax-free reimbursement from FSAs and HSAs.

* Starting in 2014, employers who don’t provide health insurance to employees must pay $2,000 per employee to the government, although the first 30 employees are free. Therefore, a company with fewer than 30 employees will not have to pay anything.

* Starting in 2011, every plan must pay $2 per participant per year to the government for research.